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I.G. Farben: Corporate criminal? Image via Wikipedia

Next Tuesday, the U.S. Supreme Court will hear arguments in Kiobel v. Royal Dutch Petroleum, a case that asks whether former residents of Nigeria's Ogani region can sue Shell in U.S. court over human-rights abuses committed by local government forces.

The decision may hinge on how justices view the skin-crawling comparison between Shell and I.G. Farben, the German chemicals conglomerate that actively participated in Nazi crimes. No one's accusing Shell of being another I.G. Farben, exactly -- the German company prospered in part on the labor of 50,000 slaves.

But Jennifer Greene, a human-rights expert at the University of Minnesota Law School, came close in a recent article in which she argued that Shell is in the same legal position as the Nazi-era company when it comes to its potential liability for wrongdoing in Nigeria.

The lesson from cases after the close of World War II is that "corporations as well as human beings must be responsible for violations of universally recognized international law norms," Greene wrote. Plaintiffs in the Shell case are trying to sue under the Alien Tort Claims Act, a 1789 law that allows non-citizens to sue in U.S. federal courts for torts "committed in violation of the law of nations or a treaty of the United States." They argue that applying the "law of nations" was amply demonstrated after World War II when Allied forces stripped companies like Farben of their assets as punishment for aiding the Nazis with their crimes.

The Second Circuit Court of Appeals in New York rejected this view in Kiobel, finding that the ATC was intended to apply to individuals, not corporations. But the Second Circuit doesn't get much support on that point.

The federal government and judges in two other federal appeals courts -- including the influential conservative Judge Richard Posner in Chicago -- have rejected the idea that corporations are immune from liability under the ATC. In a brief supporting the plaintiffs, State Dept. Legal Advisor Harold Koh argues that even back in 1789 corporations as well as individuals were understood to be liable for tort damages in court. (It's a somewhat controversial position for the Obama administration to take, given liberal outrage at the Citizens United decision equating the free-speech rights of individuals with corporations.)

More important for the plaintiffs is Posner's decision from last July in Flomo vs. Firestone. Firestone won the case when Posner upheld the dismissal of a lawsuit on behalf of Liberian children allegedly pressed into labor because of the way Firestone paid for rubber produced in plantations there. But in so doing, Posner rejected the Second Circuit's reasoning, particularly on whether Nazi firms like I.G. Farben had been subjected to legal sanctions for violating international law. Of course they had, Posner said: Allied authorities "dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations—and did so on the authority of customary international law."

Sounding almost like a human-rights activist himself, Posner went on to write:

And suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created.

Shell says it has repeatedly asked Nigerian officials to respect human rights, "continues to be strongly opposed to violence" and "would not operate behind a military shield" in Nigeria. When asked whether Shell really has anything in common with I.G. Farben, Greene demurred.

"There were actions taken under international law against I.G. Farben," she told me. "There's the same principal at stake in the Shell case."

Shell's supporters say the case, if allowed to proceed, will open the door to shakedown lawsuits against any company doing business in a difficult part of the world where government authorities don't follow the rule of law. But Greene said that minimizes the difficulty of assembling a case that will survive the initial scrutiny of a judge.